Matter of Huff

HUDOCK, Judge:

On April 26, 1987, the Appellant, who was then 17 years old, was involved in an automobile accident in which the vehicle he was driving struck and killed a seven-year-old boy. On May 14, 1987 the Pennsylvania State Police issued two citations charging the Appellant with reckless driving¹ and driving at an unsafe speed². A hearing was held June 2, 1987, on the two summary traffic offenses before a district justice. At the conclusion of the hearing, the Appellant was found guilty of both summary offenses. On July 15, 1987, the Erie County Juvenile Probation Department filed a delinquency petition charging the Appellant with one count of homicide by vehicle³. The petition was later amended to include an additional allegation of aggravated assault⁴. The Appellant claims that the Commonwealth is prevented from proceeding on the petition on the grounds of double jeopardy and collateral estoppel. The trial court held that the Commonwealth was not barred. We affirm.

The issue before this Court can be summarized as follows: Whether the concepts of double jeopardy or collateral estoppel as embodied in the Fifth Amendment to the United States Constitution prevent the Commonwealth from proceeding against the Appellant in juvenile court on charges of homicide by vehicle and aggravated assault following his prior conviction of two summary traffic violations before a district justice.⁵

We note at the outset that a recent panel of this Court in Commonwealth, v. Evers, 381 Pa.Super. 568, 554 A.2d 531 (1989), held that “the constitutional protections of the double jeopardy clause are not implicated where a felony or misdemeanor prosecution is preceded by a conviction before a district justice, whether by summary trial or guilty plea for a summary offense”. That court reached its conclusion based on dicta in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), later repeated in Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987), stating, “The disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or felony does not present the type of government harassment of a defendant that would offend double jeopardy concerns.” In Commonwealth v. LaBelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990) (en banc), we found the Evers court’s reliance on this language misplaced because both Taylor and Beatty involved the application of 18 Pa.C.S.A. § 110 and the compulsory joinder rule of Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (“Campana IT’). Neither case purported to deal with the constitutional protections of the double jeopardy clause as applicable to summary offenses. Finding the decision was based on this misinterpretation of Beatty and Taylor, we overruled that decision in LaBelle, holding that the “double jeopardy clause of the Fifth Amendment may indeed serve to bar prosecution of a more serious offense once a defendant has been convicted on a summary charge, if the requirements of case law are met.” LaBelle at 189, 579 A.2d at 1320.

It is well settled that the constitutional prohibition against double jeopardy is applicable to juvenile proceedings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), In the Interest of R.R., supra, In the Interest of George S., Ill, 286 Pa.Super. 217, 428 A.2d 650 (1981). See also Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

In deciding whether the double jeopardy clause would bar an adjudication of delinquency in the present case, we are guided by the recent decision of the United States Supreme Court in Grady v. Corbin, — U.S.-, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In that case, two traffic citations were issued to the defendant; one charging driving while intoxicated and the other charging failing to keep to the right. Three days later an assistant district attorney began gathering evidence for a homicide prosecution but failed to inform the town court of that investigation or ascertain when the defendant was scheduled to appear for trial on the summary offenses. The defendant later pled guilty to the two traffic offenses. When a grand jury brought back an indictment two months later charging the defendant with reckless manslaughter, second degree vehicular manslaughter, and criminally negligent homicide, the defendant sought a writ of prohibition barring prosecution on all counts of the indictment claiming double jeopardy barred the prosecution. In upholding his claim, the Supreme Court held that in determining whether or not subsequent prosecution is barred by double jeopardy, the court must first apply the traditional test first enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “If application of the test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred”. Grady at-, 110 S.Ct. at 2090, citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The test for determining whether an offense is a lesser included offense is whether each and every element of the lesser offense is necessarily an element of the greater offense. Commonwealth v. Thomas, 376 Pa.Super. 455, 546 A.2d 116, app. den. 520 Pa. 616, 554 A.2d 509 (1988); Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985); Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982). The court in Grady also found that this is not the only standard for determining whether violations of the double jeopardy clause exist. “[T]he double jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted”. Grady at-, 110 S.Ct. at 2093. “The critical inquiry is what conduct the state will prove, not what evidence the state will use to prove that conduct”. Id.

Applying the analysis employed by the Supreme Court in Grady to the present case, we must first determine whether the intended prosecution would violate the parameters announced in Blockburger, supra. The offense of reckless driving is defined in Section 3714 of the Motor Vehicle Code as follows: “Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of reckless driving, a summary offense.” 75 Pa.C.S.A. § 3714. The driving vehicle at safe speed provision provides, inter alia:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.

75 Pa.C.S.A. § 3361. A technical comparison of the elements necessary to prove these two summary offenses ⁶ with the elements of aggravated assault fails to demonstrate that the Commonwealth is attempting to prosecute the Appellant for a lesser included offense under Blockburger, supra. Aggravated assault, as alleged by the Commonwealth in the instant case; requires proof that a person “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702. While both reckless driving and driving at an unsafe speed require proof that the Appellant was driving a vehicle, aggravated assault does not. Additionally, aggravated assault requires proof that the Appellant attempted to inflict serious bodily injury or that serious bodily injury occurred; an element of proof not required for either of the summary charges here involved. Since aggravated assault and the two summary charges each require an element of proof which the other does not, they are clearly not the same offense.

Homicide by vehicle requires the Commonwealth to prove that (1) the Appellant drove in a manner that violated the Motor Vehicle Code, (2) the Appellant knew or should have known that his conduct violated the law and (3) the death was the probable result of the Motor Vehicle Code violation. Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988); See also In the Interest of Hyduke, 371 Pa.Super. 380, 538 A.2d 66 (1988). Since evidence of a speed violation is not always necessary to prove a charge of homicide by vehicle, 75 Pa.C.S.A. § 3361 is not a lesser included offense. In the Interest of R.R., supra.

It appears however, that reckless driving is properly considered a lesser included offense of homicide by vehicle. The only proof necessary to establish reckless driving is that the Appellant drove a vehicle in careless disregard for the safety and property of others. Commonwealth v. Glassman, 359 Pa.Super. 230, 518 A.2d 865 (1986), app. den. 515 Pa. 574, 527 A.2d 535 (1987). The mens rea of reckless driving, “careless disregard”, implies “less than willful or wanton conduct ... [but] ... more than ordinary negligence or the mere absence of care under the circumstances____” Commonwealth v. Podrasky, 250 Pa.Super. 57, 378 A.2d 450 (1977). Likewise, in order to prove homicide by vehicle, the Commonwealth must prove more than ordinary negligence, Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987), and there must be proof that the defendant’s conduct was “criminally negligent” or “reckless”.⁷ Commonwealth v. Heck, supra; Commonwealth v. Scheuing, 517 Pa. 407, 537 A.2d 1370 (1988). Since both elements of reckless driving, i.e., the actus reus of driving a vehicle and the mens rea of careless disregard, will necessarily be proven in a prosecution for homicide by vehicle, we conclude that reckless driving is a lesser included offense of homicide by vehicle.⁸ Thus, absent an exception to the applicability of the double jeopardy clause, prosecution of the homicide by vehicle charge would be barred under Blockburger, supra.

Although we concluded earlier that neither failure to drive at a safe speed nor reckless driving were lesser included offenses of aggravated assault, our inquiry does not stop. As instructed by the Supreme Court in Grady v. Corbin, supra, we must next look to determine whether the Commonwealth, in supporting the delinquency petition, is attempting to reprove conduct which formed the bases for the Appellant’s convictions on the summary offenses. While the Commonwealth is not prevented from using any of the evidence presented in the first prosecution, or presenting new evidence, no evidence may be introduced which would prove conduct constituting an offense for which the Appellant had previously been convicted. From the opinion of the trial court, it appears that the Commonwealth concedes that it would rely on the Appellant’s summary convictions in proving the allegations of delinquency. Notably, the Commonwealth does not dispute this fact. Thus, based on the record before us, it would appear that proceeding on the petition would violate Grady’s “same conduct” test. It is the Commonwealth’s assertion however, that a jurisdictional exception to the double jeopardy clause should be recognized since no single court had jurisdiction over both the summary offenses and the delinquency proceeding.

Justice Brennan, in his concurring opinion in Ashe v. Swenson, 397 U.S. 436, 457 n. 7, 90 S.Ct. 1189, 1199 n. 7, 25 L.Ed.2d 469 (1970), recognized three exceptions to the double jeopardy clause, one being the jurisdictional exception. Simply stated, if no single court has jurisdiction over all the alleged crimes, an exception to the double jeopardy clause would exist. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (Jeopardy cannot extend to an offense beyond the jurisdiction of the court in which the accused is tried); Daniel v. Warden, State Correctional Institution at Huntington, Pa., 794 F.2d 880 (1986). While the United States Supreme Court has neither explicitly accepted nor rejected the exception, we find compelling reasons justifying the express recognition of such an exception in instances where juvenile adjudications are preceded by a disposition of summary offenses before a district justice.⁹

Our legislature has created a separate legal system for the adjudication of juvenile offenders. The Juvenile Act, 42 Pa.C.S.A. §§ 6301, et seq., (the Act), grants jurisdiction to the juvenile court over proceedings in which a child is alleged to be delinquent or dependent. Id. at § 6303. Under the Act, “delinquent act” is defined as “an act designated a crime under the law of this Commonwealth ... [but] ... shall not include: (ii) summary offenses____” 42 Pa.C. S.A. § 6302. As for district justices, 42 Pa.C.S.A. § 1515 provides that “[ejxcept as otherwise prescribed by general rule adopted pursuant to § 503 (relating to reassignment of matters), district justices shall, under procedure prescribed by general rule, have jurisdiction of all of the following matters: (i) Summary offenses____” Finally, the Motor Vehicle Code provides that “[a]ny person over the age of 16 years charged with the violation of any provisions of this title constituting a summary offense shall have all the rights of an adult and may be prosecuted under the provisions of this title in the same manner as an adult.” 75 Pa.C.S.A. § 6303.

The juvenile court, then, is without jurisdiction to hear summary offenses.¹⁰ The basis for this division in jurisdiction lies in the divergent goals sought to be achieved by the criminal and juvenile court systems. Cf., In the Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981) (plurality). While at least one of the purposes of the criminal justice system is to punish individuals who fail to obey the law, the purpose of juvenile proceedings, on the other hand, is to “seek treatment, reformation and rehabilitation, and not to punish.” Id. 436 A.2d at 687. Moreover, while criminal courts employ the adversarial process to secure a conviction of the defendant, there is no provision for “convicting” an adjudicated juvenile of a “crime”. See, In the Interest of Wilson, 367 Pa.Super. 321, 532 A.2d 1167 (1987), allocatur denied Petition of Commonwealth, 520 Pa. 594, 552 A.2d 249 (1988), app. den. 520 Pa. 598, 552 A.2d 252 (1988). The juvenile court system simply “adjudicates” the juvenile, eliminating many of the consequences which would normally result from a criminal conviction. The Act specifically addresses the effect of an adjudication of delinquency. “An order of disposition of other adjudication in a proceeding under this chapter is no t a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or to operate to disqualify the child in any civil service application or appointment.” 42 Pa.C.S.A. § 6354(a) (Emphasis added). By design, the two systems are separate and are clearly intended to serve different functions.

Recognizing a jurisdictional exception to the double jeopardy clause will allow each system to operate without detriment to the functioning of the other. Under the present architecture of the judicial system, since the jurisdiction of the district justice is not co-extensive with that of the juvenile court, and neither the district justice nor juvenile court can adjudicate both summary and more serious offenses arising out of the same incident¹¹, the Commonwealth would necessarily be forced to forego one of the prosecutions. Clearly, our legislature did not intend to place prosecutors in this type of dilemma when it sought to provide an alternative to the treatment of juvenile offenders as criminals.

Recognition of this exception does not run afoul of the rule announced in Grady because the Grady court specifically reaffirmed its recognition that application of its traditional double jeopardy analysis is not without exception. Grady at-, n. 7, 110 S.Ct. at 2090, n. 7, quoting, Brown v. Ohio, supra 432 U.S. at 169 n. 7, 97 S.Ct. at 2227 n. 7. (Citations omitted.) Although the exception first acknowledged in Brown was premised on the absence of facts necessary to sustain the more serious charge, we believe that the unique circumstances presented by this case compel the equal recognition of an exception to the application of the traditional double jeopardy analysis based on the want of co-extensive jurisdiction by the two courts involved. Such an exception fully comports with the spirit of Brown and the protections which the double jeopardy clause was envisioned to afford the criminally accused and, yet, is sensitive to the fact that the Commonwealth was unable to go forward with both the delinquency petition and the trial on the Vehicle Code violations in a single proceeding.

Additionally, this decision is in full accord with our recent decision in Commonwealth v. LaBelle, supra, interpreting Grady v. Corbin, supra. Neither LaBelle nor Grady addressed the applicability of a jurisdictional exception, nor would such an exception be necessary since both of those cases involved situations where the lesser and greater offenses could have been joined, thereby enabling a single prosecution.

Having adopted this jurisdictional exception, we hold that the double jeopardy clause does not bar the Commonwealth from proceeding with the delinquency petition, despite the fact that the Appellant was found guilty of vehicle code offenses in a prior proceeding held before a district justice.

The order is affirmed and the case is remanded for further proceedings. Jurisdiction is relinquished.

MONTEMURO, J., files a concurring statement. BECK, J., files a dissenting opinion, WIEAND, J., joins.

1 . 75 Pa.C.S.A. § 3714.

2 . 75 Pa.C.S.A. § 3361.

3 . 75 Pa.C.S.A. § 3732.

4 . 18 Pa.C.S.A. § 2702.

5 . Appellant’s collateral estoppel argument is without merit. Collateral estoppel requires that where an ultimate fact has been necessarily established in favor of a defendant in a former prosecution, the issue may not be re-litigated in any subsequent proceeding against the defendant. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). See also In the Interest of R.R., 317 Pa.Super. 334, 464 A.2d 348 (1983). In the present case, the Appellant was found guilty of both summary offenses.

6 . There has been some confusion as to whether a court should limit its inquiry to the statutory elements of the offenses alleged, or should consider the factual circumstances of the case in determining if two offenses are the “same offense” under Blockburger, supra. See Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Illinois v. Vitale, supra. However, in view of the recent holding in Grady v. Corbin, supra, which provides for an examination of the conduct alleged in determining if two offenses are the same for double jeopardy purposes after the application of Blockburger, we find it appropriate to limit our discussion only to a comparison of the statutory elements of the crimes. See generally Commonwealth v. LaBelle, supra.

7 . We note that a panel of this court in Commonwealth v. Spurgeon, 285 Pa.Super. 563, 428 A.2d 189 (1981), determined that a prior acquittal of reckless driving would not preclude prosecuting the defendant on a charge of homicide by vehicle. In rejecting the argument that reckless driving is a necessary element of homicide by vehicle, the court held that "(s]ection 3732 does not require a showing of reckless or negligent culpability on the defendant’s part in order to sustain a conviction and creates strict criminal liability without regard to any scienter element.” This decision was overruled however, sub silentio, in Commonwealth v. Heck, supra.

8 . In this case, our conclusion that reckless driving is a lesser included offense of homicide by vehicle is further supported by the Commonwealth's concession, discussed more fully infra, that it intends to rely on the convictions of the summary offenses, presumably including the reckless driving conviction, to meet its burden in the delinquency proceeding.

9 . We note that New Mexico adopted a jurisdictional exception in State v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950) where the court held that the appellant’s conviction on assault and battery in the justice court did not bar a later prosecution for rape because the justice of the peace did not have jurisdiction to hear the felony rape charge. The New Mexico Supreme Court reaffirmed its position in State v. Manzanares, 100 N.M. 621, 674 P.2d 511 (1983) aff’d sub nom. Fugate v. New Mexico, 470 U.S. 904, 105 S.Ct. 1858, 84 L.Ed.2d 777 (1985), reasoning that because the magistrate did not have jurisdiction over the felony charge, the exception was applicable to a prosecution for homicide by vehicle before a magistrate after conviction of several misdemeanor traffic offenses. The jurisdictional exception which we adopt is necessary because neither the district justice nor the juvenile court had jurisdiction over both matters, unlike New Mexico where only the magistrate lacked jurisdiction over the felony charge.

10 . We note that there is authority holding that juvenile court has jurisdiction to hear summary offenses where, at a de novo hearing before the court of common pleas, the child seeks to have his case transferred to juvenile court on the grounds that 75 Pa.C.S.A. § 6303 was not applicable to him because of his age and, based on this section, the court had no jurisdiction over him. Commonwealth v. Kirk, 293 Pa.Super. 487, 439 A.2d 680 (1981). While expressing no opinion as to the propriety of this decision, we note that in the present case, 75 Pa.C.S.A. § 6303 is clearly applicable and Appellant received his rights as an adult under the statute.

11 . By virtue of 75 Pa.C.S.A. § 6303, a juvenile charged with a summary vehicle offense has all the rights of an adult. Thus, the juvenile cannot be required to submit to the informality of the juvenile hearing. Moreover, there is no indication that all charges could have been brought in criminal court. 42 Pa.C.S.A. § 6322 provides, "[e]xcept as provided in 75 Pa.C.S.A. § 6303 (relating to the rights and liabilities of minors), if it appears to a court in a criminal proceeding other than murder, that the defendant is a child, the court shall halt further criminal proceedings and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings----” Clearly then, exclusive jurisdiction over juveniles charged with offenses other than murder or summary vehicle offenses lies with the juvenile court. See Commonwealth v. Zoller, 345 Pa.Super. 350, 498 A.2d 436 (1985).